Beckman Schmalzle Georgelas & Ross- Loudoun County Family & Criminal Law Attorneyshttp://beckmanschmalzle.com
Tue, 21 Nov 2017 17:25:17 +0000en-UShourly1https://wordpress.org/?v=4.8.5Divorce Options: Mediation and Collaborative Divorcehttp://beckmanschmalzle.com/divorce-alternatives-mediation-collaborative-divorce/
http://beckmanschmalzle.com/divorce-alternatives-mediation-collaborative-divorce/#respondThu, 20 Jul 2017 15:27:31 +0000http://beckmanschmalzle.com/?p=1092Divorce options include mediation and collaborative divorce. You may be aware that there are different options for obtaining a divorce, but have questions about what they are and what each process entails. Mediation is a familiar alternative to litigating a divorce, but many clients are not sure what to expect in a mediation. Mediation is a form […]

]]>Divorce options include mediation and collaborative divorce. You may be aware that there are different options for obtaining a divorce, but have questions about what they are and what each process entails. Mediation is a familiar alternative to litigating a divorce, but many clients are not sure what to expect in a mediation. Mediation is a form of alternative dispute resolution.A divorcing couple meets with one attorney-mediator to work through all of the issues arising out of their marital separation, including custody, support and the division of property.The mediator will guide the parties through each issue and facilitate the discussion. However, this is very much a client driven process. Mediators do not provide individual legal advice. Occasionally, a mediator will help the parties evaluate their options when needed to keep the process moving forward past any obstacles. For the most part, though, the parties should be going into mediation with a willingness to compromise with their spouse. Once agreements are reached, the mediator will draft an agreement.Once that contract is signed, the divorce process itself becomes uncontested.

There are many benefits to mediation, but it is not right for everyone.Mediation allows couples to save the costs of paying for multiple attorneys and litigation. Each party should obtain independent legal advice, though, which entails additional costs. Mediation allows parties to maintain civility, which is particularly beneficial for parents who will have to continue to raise children together.In addition, mediation involves the open sharing of financial and other information. Therefore, there must be a certain level of trust that your spouse will be forthcoming with a full disclosure. Finally, the most significant obstacle to mediation is when there are issues of power and control or domestic violence in a relationship. Mediation does not work when the parties do not have equal bargaining power.

Collaborative Divorce is an alternative to litigation and mediation. It is another form of voluntary, alternative dispute resolution. You must hire an attorney who has been trained in collaborative divorce. The process begins with a signed participation agreement, and each party is represented by an attorney whose representation will terminate if there is any contested litigation.Collaborative divorce is similar to mediation in that it involves the voluntary disclosure of information and a commitment to making a good faith effort to negotiate. A unique feature of collaborative divorce is that it does not follow a traditional adversarial model of client representation. This means that both attorneys work with both parties to reach the best outcome for the family. At the same time, the parties have the benefit of being guided by their attorneys throughout the process. There are additional services available with a collaborative divorce.The parties may hire other experts including financial neutrals, divorce coaches, and child specialists to help with specific aspects of their case.All of these professionals are trained in the collaborative divorce process.

Some divorces require litigation, this is particularly true when there are emergent issues of custody or support. The attorneys at Beckman Schmalzle Georgelas & Ross have an extensive litigation practice. In many cases, though, alternate dispute resolution is the way to go. Many divorce attorneys are not able to provide mediation or collaborative divorce services. It is important to know that these options are available to you in your divorce.

If you have questions about what divorce option is right for you, please contact the attorneys at Beckman Schmalzle Georglas & Ross for a consultation.

]]>http://beckmanschmalzle.com/divorce-alternatives-mediation-collaborative-divorce/feed/0Estate Planning: New Year, New Lawhttp://beckmanschmalzle.com/new-year-new-estate-law/
http://beckmanschmalzle.com/new-year-new-estate-law/#respondThu, 09 Mar 2017 15:16:49 +0000http://beckmanschmalzle.com/?p=1028The Virginia legislature has passed new laws which impact estate planning for married people. The “elective share” statute provides a spouse with a share of the other spouse’s estate upon his death; it is a right descended from common law, which has existed for hundreds of years to protect a spouse from disinheritance. So, even if […]

]]>The Virginia legislature has passed new laws which impact estate planning for married people. The “elective share” statute provides a spouse with a share of the other spouse’s estate upon his death; it is a right descended from common law, which has existed for hundreds of years to protect a spouse from disinheritance. So, even if a wife executes a will leaving her entire estate to an adult child, the husband can still claim a percentage of her estate. For a spouse who dies before January 1, 2017, that percentage equals 1/3 of the estate if the decedent left surviving children or ½ of the estate if there are no children. For a spouse who dies after January 1, 2017, the percentage his or her spouse could claim equals up to 50% regardless of whether or not the decedent has any surviving children. See Virginia Code Ann. §64.2-308.2 (1950 as amended).

The new law considers marriage as more of a financial partnership, as opposed to a union where one spouse may need to be protected. One key aspect of the law is the sliding scale for determining the elective share, based on the length of the parties’ marriage:

Less than 1 year 3%

1 year but less than 2 years 6%

2 years but less than 3 years 12%

3 years but less than 4 years 18%

4 years but less than 5 years 24%

5 years but less than 6 years 30%

6 years but less than 7 years 36%

7 years but less than 8 years 42%

8 years but less than 9 years 48%

9 years but less than 10 years 54%

10 years but less than 11 years 60%

11 years but less than 12 years 68%

12 years but less than 13 years 76%

13 years but less than 14 years 84%

14 years but less than 15 years 92%

15 years or more 100%

Even though prior children will receive less of a share of the estate for marriages which last over 10 years, they will receive more than they did under prior law for shorter term marriages.

Another key component of this law is understanding the “augmented estate,” which are the assets comprising the decedent’s estate from which the surviving spouse will receive his or her share. The augmented estate includes pretty much any kind of property.

Under the old law, the augmented estate was defined as the decedent’s assets minus what the surviving spouse had already received from the decedent. Under the new law, the augmented estate includes the surviving spouse’s assets as well. Essentially, both parties’ assets will be added to together, the amount the surviving spouse already owns and has received is subtracted, and the surviving spouse receives her elective share of the remainder. Therefore, the elective share will be significantly reduced if the surviving spouse has her own assets. Again, this change seems in line with the intent to see marriage as more of an equal financial partnership.

There are other changes to the laws as well, including shorter deadlines for a surviving spouse to file a claim, and expanded property interests in the marital residence.

The import of these changes for the average person, is that private estate planning is even more crucial now that the laws have become more complicated. Litigation under this act could pose costly and emotional challenges for adult children and surviving spouses.

Every married couple should have wills (and possibly trusts) in place to govern the disposition of their assets upon death, which may include waiving the elective share in some cases. This right to waive the elective share applies to prenuptial/premarital agreements as well, particularly for couples marrying later in life who have adult children.

]]>http://beckmanschmalzle.com/new-year-new-estate-law/feed/0Can I pay temporary child or spousal support from our savings?http://beckmanschmalzle.com/child-spousal-support-paid-savings-salary/
http://beckmanschmalzle.com/child-spousal-support-paid-savings-salary/#respondFri, 09 Dec 2016 15:12:38 +0000http://beckmanschmalzle.com/?p=1020When you are going through a divorce, saving as much of the marital assets (such as your checking and savings account) can be critical to most people. Meanwhile, the spouse responsible for paying support has to figure out how to pay his/her regular bills, possibly for two residences, plus the added expenses for attorney’s fees […]

]]>When you are going through a divorce, saving as much of the marital assets (such as your checking and savings account) can be critical to most people. Meanwhile, the spouse responsible for paying support has to figure out how to pay his/her regular bills, possibly for two residences, plus the added expenses for attorney’s fees and support (either child or spousal support) pending the final divorce hearing. Can you use the money in your joint checking account to pay spousal support? What about from the joint savings account? Or, does it have to be paid from your current income/salary?

Or, the spouse who is receiving support may be concerned about the source of funds being used to pay her temporary spousal support (“alimony”). Can your spouse use marital assets to pay you? What if this would leave nothing in your savings account by the time the final divorce hearing arrives?

Effective on July 1, 2016, the Virginia legislature passed a new law to address these concerns. Specifically, Virginia Code § 20-103 was modified to include the following:

“A1. Any award or order made by the court pursuant to subsection A shall be paid from the post-separation income of the obligor unless the court, for good cause shown, orders otherwise. Upon the request of either party, the court may identify and state in such order or award the specific source from which the financial obligation imposed is to be paid.”

In short, the statute now requires that any temporary support (i.e., child support or spousal support) must be paid from a person’s income earned after the parties’ date of separation, and not from marital assets. If the paying spouse has a valid, good cause reason to pay the temporary support from marital assets, they may be permitted to pay from those assets but only if permitted by the Court.

The new law was passed to respond to concerns raised after a 2013 Court of Appeals decision, Wright v Wright, 61 Va. App. 432, 463 (2013). In this case, the Court held that the trial court was not required to consider the husband’s post-separation income or other separate assets in determining whether the husband unfairly spent marital assets following the parties’ separation. Specifically, the husband was paying spousal support from the parties’ marital assets, which ultimately reduced the value of the marital funds that were to be divided at the time of the final divorce hearing. Arguably, the Court’s decision in this case set a precedent that it was not improper for the Husband to pay spousal support from the parties’ assets.

While the new law passed this year directs courts to order temporary spousal support (or child support) to be paid from income, not assets, it does not address the spending of marital assets to pay support or other expenses prior to any court order being entered.

If you are concerned about the issue of paying support with marital assets, you should consult with an experienced family law attorney knowledgeable about support and property issued in Virginia divorces.

If you need assistance in a family law matter, please do not hesitate to contact us here.

]]>http://beckmanschmalzle.com/child-spousal-support-paid-savings-salary/feed/0What about Fido? Protective Orders and Pet Custody in Virginia.http://beckmanschmalzle.com/protective-orders-and-pet-custody-in-virginia/
http://beckmanschmalzle.com/protective-orders-and-pet-custody-in-virginia/#respondThu, 10 Dec 2015 17:35:11 +0000http://beckmanschmalzle.com/?p=972As family law lawyers in Leesburg, Virginia, we are often asked questions about pet custody in Virginia. We are also often in the position of seeking protective orders on behalf of our clients and defending our clients against malicious protective orders. Some new changes in the law have created an area where protective orders and pet […]

]]>As family law lawyers in Leesburg, Virginia, we are often asked questions about pet custody in Virginia. We are also often in the position of seeking protective orders on behalf of our clients and defending our clients against malicious protective orders. Some new changes in the law have created an area where protective orders and pet custody in Virginia merge.

As we have stated previously regarding protective orders, they are a vital tool in protecting victims of violence and abuse or potential victims from threatened violence or abuse. Sometimes, however, protective orders are used as a negotiating tactic at the beginning stages of a divorce proceeding. Whether it is an emergency protective order, preliminary protective order, or permanent protective order, the issuance of one can dramatically affect one’s life.

A party need only present testimony to a magistrate of an alleged incident in order to obtain an Emergency Protective Order. This is an ex parte proceeding, which means that the accused does not have the right to appear. These Emergency Protective Orders usually last up to 72 hours. They are followed by a Preliminary Protective order, which is also an ex parte Order which lasts for about 2 weeks. At the end of that period, there will be a hearing (with all parties having the right to be present) for a Permanent Protective Order, which lasts for up to two years. The Petitioner (the person requesting the protective order) may be granted certain relief through any Protective Order pursuant to Va. Code Ann. §16.1-253.1, such as:

Right to exclusive use and possession of the home to the exclusion of the other party;

Right to the exclusive use of a vehicle of his or her choosing (whether jointly owned or in the other parties’ name only); and

Prohibition against the other party from terminating any utility service to the premises granted to the Petitioner.

Now, as of July 1, 2014, a Court may grant petitioners even more including the right to exclusive possession of any “companion animal” that may have resided with the parties. A companion animal is defined under Va. Code Ann. §3.2-6500 as:

“any domestic or feral dog, domestic or feral cat, nonhuman primate, guinea pig, hamster, rabbit not raised for human food or fiber, exotic or native animal, reptile, exotic or native bird, or any feral animal or any animal under the care, custody, or ownership of a person or any animal that is bought, sold, traded, or bartered by any person. Agricultural animals, game species, or any animals regulated under federal law as research animals shall not be considered companion animals for the purposes of this chapter.”

A petitioner need only prove ownership of the animal in order to have it included in the protective order. Ownership can be shown by simply testifying that the petitioner is the custodian for the animal and the animal resides at the Petitioner’s residence. For example, if a Husband and Wife get into an argument and the Wife requests and is then granted an emergency protective order against the Husband, not only can she be granted the things listed above but she can also now be granted possession of the family pet. Even though the Husband most likely has an equal claim to the family pet as an owner under the definition provided in Va. Code Ann. §3.2-6500, because the Wife has petitioned the Court for a protective order and not the Husband, the Wife will get sole custody of the pet as long as she can show that she is also the owner.

This new provision applies to emergency protective orders, preliminary protective orders, and permanent protective orders. As a result, it is imperative to seek counsel if you have been served with a protective order against you or you need assistance obtaining a protective order against a family or household member. Not only could your residence be a primary issue but now as the Wicked Witch once said, “your little dog too!”

We are Leesburg family lawyers and we are often litigating protective order cases for our clients in the Loudoun County Juvenile & Domestic Relations District, Loudoun County Circuit Court, Clarke County Juvenile & Domestic Relations District, Clarke County Circuit Court, Frederick County Juvenile & Domestic Relations District, Frederick County Circuit Court, Fairfax County Juvenile & Domestic Relations District, and Fairfax County Circuit Court. Call us to set up a consultation to discuss how we can help you.

]]>http://beckmanschmalzle.com/protective-orders-and-pet-custody-in-virginia/feed/0How long do I Have to be Separated before I Can Get a Divorce in Virginia?http://beckmanschmalzle.com/how-long-do-i-have-to-be-separated-before-i-can-get-a-divorce-in-virginia/
http://beckmanschmalzle.com/how-long-do-i-have-to-be-separated-before-i-can-get-a-divorce-in-virginia/#respondSun, 15 Nov 2015 23:21:05 +0000http://beckmanschmalzle.com/?p=968How long do I Have to be Separated before I Can Get a Divorce in Virginia? The quick answer is that it depends but most likely you will have to be separated for one year. There are a few exceptions discussed below. Virginia, like many states and commonwealths, requires that you be separated for a […]

]]>How long do I Have to be Separated before I Can Get a Divorce in Virginia? The quick answer is that it depends but most likely you will have to be separated for one year. There are a few exceptions discussed below.

Virginia, like many states and commonwealths, requires that you be separated for a period of time before you and your spouse can get a divorce. In Virginia, you must have grounds to obtain an absolute divorce, also called a divorce from the bonds of matrimony or a divorce a vinculo matrimonii. The grounds for a divorce from the bonds of matrimony are set out in Virginia Code Ann. § 20-91. There are grounds that we call “fault based” grounds, such as adultery and cruelty, and there are also grounds that we call “no fault” grounds, which include a separation without cohabitation and without interruption for a certain period of time.

Generally, the required separation period is one year. Virginia Code Ann. § 20-91(A)(9) allows parties to obtain a divorce after the parties have lived separate and apart without cohabitation and without interruption for more than one year. This is the no fault grounds discussed above. It is important to note that you cannot file for divorce on these grounds until the grounds exist. That means that you cannot file for a divorce until AFTER you have already been separated for a year. If your divorce is contentious you will likely not be able to actually obtain a divorce for at least a few months until after you file, and perhaps longer. If your divorce is contentious, you will need to schedule a long enough trial to cover all the issues that are in contention, and that means that you will have to schedule the trial at a date when the court has enough time to hear all the issues. Many circuit courts in the Commonwealth of Virginia have congested dockets, like Loudoun County Circuit Court in Leesburg and Fairfax County Circuit Court, and it will take some time before the Court will be able to hear your divorce case. You and your divorce lawyer will also likely want to schedule the hearing enough in advance to allow you to take advantage of discovery tools, such as interrogatories, requests for production of documents, requests for admissions, and depositions.

There are some exceptions that allow a divorce to be obtained before one year has elapsed. One of the exceptions is adultery. The grounds of adultery is set out in Virginia Code Ann. § 20-91(A)(1) and does not have a time restriction. This means you can file for divorce on this grounds immediately. As a practical matter, you will still likely not schedule your trial until after one year has elapsed from separation. Adultery is not easy to prove with the specificity required under Virginia law. If you wait until after a year has elapsed from separation, you will be able to obtain a divorce based on a one year separation if you fail to meet the burden of proving adultery. The advantage is that you will be in court, can perform discovery, and will be able to schedule to final hearing around the time of one year or close to it instead of having to wait to even file until after one year has elapsed. Another exception that exists to the one year requirement is the exception under § 20-91(A)(9)(a). The exception allows you to obtain a divorce after six months only if (1) you and your spouse have entered into a settlement agreement resolving the marital issues, AND (2) there are no minor children born of the parties, born of one party and adopted by the other party, or adopted by both parties. Again, you cannot actually file until after six months have passed, but your divorce can be wrapped up in a short period of time after filing because all of your issues have been resolved by the settlement agreement and you will not need to schedule a trial.

Other grounds exist for a divorce from the bonds of matrimony, including cruelty and abandonment. These grounds also require a year to have passed from the separation before a final divorce can be granted. Both of these are also grounds for a divorce from bed and board, or a divorce a mensa et thoro. A divorce from bed and board is not a final divorce. The divorce exists, in part, to allow some people that do not believe in or object to divorces from the bonds of matrimony to obtain a kind of non-final divorce. As a practical matter, many parties will file for a divorce from bed and board when grounds exist so that the case can be filed in Circuit Court. That way discovery can begin and the case can be set for trial at a date after the parties have been separated for a year without having to wait until then to even file. Another benefit to being in court before a year has elapsed is that the parties can ask the court for temporary relief on issues such as child custody, child support, spousal support, exclusive use of the marital residence, and the freezing of certain marital assets. The grounds for a divorce from bed and board are set out in § 20-95 and the power of the court to make temporary order is set out in § 20-103.

If you are separated from your spouse and considering a divorce, you should talk to an attorney about your options. Even if you do not have grounds, it is possible to resolve all of your marital issues before you have been separated for a year. This is often a much less financially and emotionally taxing alternative to litigation. Also, you may discover that you have grounds to get into Court and did not realize it. It is also possible to get into the Circuit Court or the Juvenile & Domestic Relations District Court on the issues of child custody, child support, and spousal support without filing for divorce. You should know your options, and at Beckman Schmalzle Georgelas & Ross, PLC, we can discuss them all with you.

]]>http://beckmanschmalzle.com/how-long-do-i-have-to-be-separated-before-i-can-get-a-divorce-in-virginia/feed/0Does My Spouse Have Any Rights To My Retirement Through Our Divorce?http://beckmanschmalzle.com/does-my-spouse-have-any-rights-to-my-retirement-through-our-divorce/
http://beckmanschmalzle.com/does-my-spouse-have-any-rights-to-my-retirement-through-our-divorce/#respondSat, 07 Nov 2015 18:38:22 +0000http://beckmanschmalzle.com/?p=963Saving for retirement is a conversation many couples discuss during their marriage in preparing for their future together. While the parties may have been on the same page when initially discussing how to save, their conversation may be different when going through any contentious divorce. In short, the answer is yes, your spouse may be […]

]]>Saving for retirement is a conversation many couples discuss during their marriage in preparing for their future together. While the parties may have been on the same page when initially discussing how to save, their conversation may be different when going through any contentious divorce. In short, the answer is yes, your spouse may be entitled to a portion of any retirement accounts, including pensions, that are solely titled in your name. The fact that any retirement asset is titled solely in one’s name does not prevent any marital funds from being divided.

Nevertheless, only the “marital share” of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, may be divided. Virginia Code 20-107.3(G)(1) defines “marital share” as “that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.” In short, only money that was contributed to the retirement plan starting on the date of marriage until the date of your separation may be divided. This is why is it important to keep copies of all retirement statements showing the values in the account on the date of your marriage and the date of your separation.

How much is my spouse entitled to receive? This question is more difficult. Unlike many states, where property is considered communal and divided equally upon any divorce, Virginia exercises principles of equitable distribution in determining how to divide marital property. The Court considers the following eleven (11) factors set forth in Virginia Code § 20-107.3(E) when considering how to divide marital property:

The contributions, monetary and nonmonetary, of each party to the well-being of the family;

The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

The duration of the marriage;

The ages and physical and mental condition of the parties;

The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;

How and when specific items of such marital property were acquired;

The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

The liquid or nonliquid character of all marital property;

The tax consequences to each party;

The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

Additionally, the Court may not order the payment of retirement assets that is greater than fifty percent (50%) of the marital share of the cash benefits actually received by the party against whom such award is made. SeeVirginia Code § 20-107.3 (G)(1). However, the fact that the Court may only award a spouse at most fifty percent (50%) of retirement assets, does not prevent a party from agreeing to divide more than 50%. This may be a useful tool during settlement negotiations. An experienced attorney can work with you to consider various factors when dividing retirement, including time-value of money, tax consequences, your age, the length of time until any such assets may be received, etc.

Finally, when dividing retirement, one needs to consider whether a spouse shall be designated as the beneficiary for a portion or all of any survivor benefit plan or annuity. This is also an issue that should be addressed in any negotiations, include who is responsible for the monthly premiums for any survivor benefit plan.

Each case is different, and it is best to discuss your case with an experienced family law attorney that can guide you through the various options upon considering the specific facts and circumstances of your situation.

As this is a brief overview of dividing retirement benefits, please visit our website in the future for a more detailed description of different considerations when dividing these assets, including how to properly effectuate the transfer and division of retirement accounts and whether court orders are necessary for the division of your retirement assets.

]]>http://beckmanschmalzle.com/does-my-spouse-have-any-rights-to-my-retirement-through-our-divorce/feed/0Co-Parenting Successfully through the Holiday Season: 4 Tips to Considerhttp://beckmanschmalzle.com/co-parenting-successfully-through-the-holiday-season-4-tips-to-consider/
http://beckmanschmalzle.com/co-parenting-successfully-through-the-holiday-season-4-tips-to-consider/#respondFri, 07 Nov 2014 20:12:08 +0000http://beckmanschmalzle.com/?p=560Fall has arrived and so too has the holiday season. This is generally a time for families to come together; to be joyful and thankful and to celebrate with kindness and love. But for many divorced families, the holidays can be a stressful and challenging time. “I love Halloween, but I can’t stand sharing it […]

]]>Fall has arrived and so too has the holiday season. This is generally a time for families to come together; to be joyful and thankful and to celebrate with kindness and love. But for many divorced families, the holidays can be a stressful and challenging time. “I love Halloween, but I can’t stand sharing it with my ex-husband” and “I don’t like that my kids hate going to their father’s for Thanksgiving, but what can I do, this is his year” and “Great, so now I am supposed to put a smile on my face for the kids with my ex-wife’s new boyfriend at Christmas” are just a few of the comments stated by some my divorced patients already this year.

And while I fully appreciate the difficult struggles many divorced couples deal with, I encourage my divorced patients who remain in high conflict co-parenting relationships to remember that their children’s adjustment and emotional wellbeing should be what is most important – and not just during holidays, but across the entire year.

I offer the following tips for co-parenting successfully to divorced couples this holiday season:

Know your bandwidth: If you are currently in a high conflict relationship with your ex-husband or ex-wife, your capacity to get along over the holidays will be more limited than if you are in a respectful and loving relationship with your ex. While some divorced couples are able to trick-or-treat together with their children or trade off mid night on Halloween, other divorced couples do not have enough respect and agreement to do so. Holidays for this latter group are typically best managed separately to decrease or avoid problems for the involved children. Knowing what you can and cannot give of yourself in relation to your ex should dictate how actively you co-parent your children during holiday events and activities.

Plan ahead and communicate things clearly: Planning ahead and communicating are essential ingredients for a strong and successful co-parenting relationship. This is important for divorced couples who are in a state of high conflict since strong, negative emotions can contribute to defensive communication that can escalate into bad moments. Planning ahead and communicating about things clearly is even important for divorced couples who get along well since living separate lives can lead to assumptions and misunderstandings. For example, a patient of mine from several years ago made very expensive travel arrangements for her children and herself for the Christmas week. Unfortunately, her ex-husband had done the same thing. In the end, there were several non-refundable tickets and hotel reservations for one parent, and all of this could have been avoided with better planning and communication.

Keep or create new family traditions: Some families are able to continue their holiday traditions after divorce, and this can be very healthy. For instance, divorced couples of very young children may wish to be together on Christmas Morning when gifts are being opened under the tree. This co-parenting moment can serve to give younger children the predictability, consistency and closeness that they have always experienced and known with their parents. Thus, listening to your children, or at least considering their needs (developmental and emotional) is a good idea when planning for the holidays as a divorced couple. Most families, however, create new family traditions, which can also be very healthy. Volunteering, running a 5K, visiting a specific destination annually or visiting extended family are some ideas that can feel good and become the new normal for your children over time.

Practice Kindness: Children can be very aware of how their parents feel about each other so be mindful of what you say to your ex and how you behave with him or her in the presence of your children. For couples who co-parent actively and with little trouble, practicing kindness is easier to do than for couples who have a more complicated history with ongoing struggles. Regardless of whether you co-parent actively or you co-parent in the minimum due to your situation, remember that children learn some of their most important life lessons from their parents, including how to have a loving relationship with a significant other.

Although children of divorced parents live in two separate homes, it should always be the goal of divorced parents to create two happy homes for their children. And children should always experience their parents as being together for them as mom and dad – especially during important moments. When working with divorced parents in high conflict relationships, I remind them to keep things in perspective; that they will very likely be attending their children’s graduations and weddings and their children need them to be there fully for them. When divorced parents can move beyond their upset and instead demonstrate respect and practice kindness in the presence of their children, they are teaching their children how to love and how to be in a relationship. The holidays with your children can create opportunities for you to be mindful of how you are at transitions with your children and how you are (and want to be) together with your children as a divorced family.

By: Dr. Michael Oberschneider, Founder and Director of Ashburn Psychological and Psychiatric Services. To learn more about Dr. Oberschneider and his practice, we invite you to visit: www.ashburnpsych.com or call: (703) 723-2999.

]]>http://beckmanschmalzle.com/co-parenting-successfully-through-the-holiday-season-4-tips-to-consider/feed/0Can I go to Jail for Not Paying Alimony / Spousal Support?http://beckmanschmalzle.com/can-i-go-to-jail-for-not-paying-spousal-support/
http://beckmanschmalzle.com/can-i-go-to-jail-for-not-paying-spousal-support/#commentsFri, 08 Aug 2014 10:59:21 +0000http://beckmanschmalzle.com/?p=547Spousal support, also called alimony or support and maintenance, is court ordered payment to a spouse or ex-spouse. You may get spousal support if you are still married and separated. Since spousal support is court ordered, the question is, “Can I go to jail for not paying spousal support?” The simple answer to that question […]

]]>Spousal support, also called alimony or support and maintenance, is court ordered payment to a spouse or ex-spouse. You may get spousal support if you are still married and separated. Since spousal support is court ordered, the question is, “Can I go to jail for not paying spousal support?” The simple answer to that question is: “Yes.”

If a court orders you to pay spousal support, then failure to pay is disobeying a court order, and the court can find you in “contempt of court” for disobeying its order. Remedies for failure to pay support include wage liens, levies upon personal property, garnishment of property, garnishment of wages, and even incarceration. See Va. Code Ann. § 20-115. Pursuant to Va. Code Ann. § 20-115, if the court finds you in contempt, it can order you incarcerated for up to one year and order that you perform work during the year you are incarcerated.

In Virginia, the Court can order one spouse to pay support to the other in a lump sum, in periodic installments for a fix period of time, or in periodic installments for an indefinite period of time, also called “permanent support.” See Va. Code Ann. § 20-107.1(C). When the Court orders support without agreement of the parties, evidence of certain events can terminate the support obligation. One such event is when the spouse receiving support lives with another person in a marriage-like relationship for one year or more according. See Va. Code Ann. § 20-109.

Once spousal support has been set by decision of the court, it cannot be changed unless there has been a material change in circumstances since the last spousal support order. See Va. Code Ann. § 20-109. A material change might include a significant increase or decrease in income because of either party. Upon petition, the court can raise, lower, or terminate the amount of spousal support.

If the parties agree in a marital agreement incorporated by court order, however, that there can be spousal support modification, then the court does not have the power to modify support. See Va. Code Ann. § 20-109(C). This means that if a party agrees to pay support for 10 years and that the obligation is unmodifiable, then he or she is obligated to pay that support for 10 years, no matter what happens. If he or she is making $500,000 per year when the agreements is made, and subsequently loses his or her job and cannot find any job other than a fry cook at McDonald’s, he or she is still out of luck and support will not be modifiable. The rule also means that if a party agrees to waive his or her right for support and agrees that the waiver is unmodifiable, then the court does not have the power to award him or her support.

For these reasons, it is very important to carefully consider all your rights before obligating yourself to pay support, before accepting a support offer, or before waiving your right for support. Once an agreement is signed, there is very little that can be done to have that agreement set aside, even if the agreement is not yet part of a court order. There are ways to set an agreement aside, but they require very special circumstances and are rarely used by the courts. If you have questions, the Leesburg Divorce Attorneys at Beckman Schmalzle PLC can help you get those questions answered. The attorneys at Beckman Schmalzle PLC are located in Leesburg, Virginia and routinely practice in Loudoun County, Fairfax County, Clarke County, Frederick County, and Prince William County.

]]>http://beckmanschmalzle.com/can-i-go-to-jail-for-not-paying-spousal-support/feed/5Virginia Updates Child Support Guidelineshttp://beckmanschmalzle.com/virginia-updates-child-support-guidelines/
http://beckmanschmalzle.com/virginia-updates-child-support-guidelines/#respondTue, 01 Jul 2014 13:52:20 +0000http://beckmanschmalzle.com/?p=543Virginia updates child support guidelines effective today, Tuesday, July 1, 2014. The new guidelines will general result in an increase in the amount of the child support obligation that a noncustodial parent owes. In some cases, the change in the required support will be minimal. For example, under the old guidelines, a person who was unemployed […]

]]>Virginia updates child support guidelines effective today, Tuesday, July 1, 2014. The new guidelines will general result in an increase in the amount of the child support obligation that a noncustodial parent owes. In some cases, the change in the required support will be minimal. For example, under the old guidelines, a person who was unemployed and obligated to support for one child would have an obligation of $65 per month. Under the new guidelines, a person who is unemployed and obligated to support one child will have an obligation of $68 per month. For other people, the change is more significant. For example, under the old guidelines, a couple with combined monthly income of $20,000 and one child would have a joint, monthly child support obligation of $1,324. The support one parent would pay would then be determined in proportion to the respective incomes of the two parents. Under the new guidelines, a couple with combined monthly income of $20,000 and one child will have a joint, monthly child support obligation of $1,591. The difference in support between the two guidelines is $167 per month.

The change begs the question: can I get a modification based on the new guidelines? The answer is yes, if the new guidelines would result in a significant change to your monthly child support, it may be worth it for you to pursue an increase or decrease in child support. Deciding whether to pursue a change, however, is one that you should consider carefully. Other factors that have changed may offset the net change to your support. These factors include the comparative salary of you and the other parent, changes in work-related childcare costs, and changes in healthcare costs. You should consult with an attorney and that will run all the numbers for you to access the advantages to pursuing a modification in support.

]]>http://beckmanschmalzle.com/virginia-updates-child-support-guidelines/feed/0Can I go to Jail for not Paying Child Support?http://beckmanschmalzle.com/can-i-go-to-jail-for-not-paying-child-support/
http://beckmanschmalzle.com/can-i-go-to-jail-for-not-paying-child-support/#respondMon, 19 May 2014 11:33:28 +0000http://beckmanschmalzle.com/?p=539Can I go to Jail for not Paying Child Support? In short, yes you can to jail for failure to pay child support in Virginia. There are many remedies in Virginia, as well as other states, that a person receiving child support has when a parent fails to pay child support. These […]

In short, yes you can to jail for failure to pay child support in Virginia. There are many remedies in Virginia, as well as other states, that a person receiving child support has when a parent fails to pay child support. These remedies include loss of business license, loss of driver’s license, garnishment of wages, garnishing of income tax returns, and incarceration.

This blog post covers some of the relevant information and authority related to child support enforcement in Virginia. This blog entry is not intended to be an exhaustive discussion on the topic, not even close. Furthermore, this blog entry is intended for informational purposed only. A person with matters relevant to those discussed below should use this blog during the information gathering process and perhaps as research to help them interact with and select an attorney. A person with any of the issues described below should NOT use this blog entry as a substitute for obtaining legal advice.

Child Support Orders

Every Virginia child support order is required by law to have certain notices. The required notices are stated in full detail in Va. Code Ann. § 20-60.3. There are 17 different paragraphs that cover the required notices and what content must be included in child support orders, and I am not going to restate each of them here. A few examples, however, are (1) that support will continue for children over the age of 18 under certain circumstances, (2) that a petition can be filed to suspend a license to engage in professions, such as a teaching license or barber’s license, and/or a driver’s license after there has been a delinquency for more than 90 days OR there is delinquency of more than $5,000., and (3) unpaid support becomes a judgment by operation of law with the interest accruing at the judgment rate, or 6%. Va. Code Ann. § 20-60.3 does not, however, require notice to be given that failure to pay child support can result in incarceration.

Enforcement through theContempt Power of the Court

The Court has the power to send you to jail if you do not pay child support. Va. Code Ann. § 20-115 could not state this power any more clearly. If you fail or refuse to comply with an order relating to the support and maintenance of a child or children, the Court can commit and sentence you to a local correction facility. The sentence can be for a fixed or indeterminist amount of time, so long as the sentence does not exceed 12 months. What is more is that while you are in jail, the Court can assign you to a local work-release program to perform public service work. The money you earn from work-release will be applied to your child support. The work-release statute can be found here.

Va. Code Ann. § 16.1-292 gives the Juvenile and Domestic Relations District Court (“J&DR Court”) similar power to commit and sentence you for a period of up to 12 months if you fail to pay child support. Just like the Circuit Court, the J&DR Court can assign you to the work-release program. You have an automatic right of appeal from the J&DR Court to have your case heard all over again in the Circuit Court. If you are being committed to jail for failure to pay child support, however, you likely owe a significant arrearage. Unlike most cases in the J&DR Court, to perfect an appeal of a support arrearage, Va. Code Ann. § 16.1 -296 states that you must post a bond in the amount of your arrearage. Consequently, many people found by the J&DR court to have a significant arrearage, are unable to appeal the order because they are unable to perfect the appeal. What is more is that the J&DR court can also require additional bond to cover support that will accrue during the pendency of the appeal.

Child support arrearage cases are serious cases with serious consequences. They should not be taken lightly, regardless of the venue of the case.

Importance of Receiving a Child Support Modification

If your circumstances, the circumstances of your children, or the circumstances of the other parent have changed in a material way since the last child support order, then it is important that you petition the appropriate court to modify child support. A handshake deal between you and the other parent IS NOT ENOUGH to modify your support obligation. You need to have the agreement put into a new court order. The Court has the power to retroactively modify support under Va. Code § 20-108 BUT ONLY for the period during which a petition to modify is pending. This means that if you file on March 1, 2014 and the Court enters an order one June 1, 2014, then the Court may make the order retroactive to March 1, 2014. The Court may not, under the same statute, make the order retroactive to February 28, 2014, or any date before you file. So, if you had an agreement to modify support on March 1, 2012, but did not petition the court until March 1, 2014, you are on the hook for two years of arrears.

Is there a Statute of Limitations for Child Support in Virginia?

There is not a simple answer to that question. In a sense there is a statute of limitations on child support enforcement, but it is easier to extend than most statutes of limitations. The Virginia Supreme Court recently considered the issue in Adcock v. Commonwealth, 282 Va. 383 (2011). The Court restated the established law under Va. Code Ann. § 8.01-426 that support payments become a judgment as a matter of law when they become due and are unpaid. Consequently, the Court held that each installment of child support that goes unpaid becomes a judgment on the date it is due in the amount of the installment due. Va. Code Ann. § 8.01-251(A) limits the enforcement of judgments of the Circuit Court to 20 years. Consequently, there is a 20 year limitation on enforcing a support payment that has become a judgment.

Let’s use a hypothetical to flesh out where the waters can get a little muddy. Let’s assume that Dad is ordered to pay Mom support for their only child on January 1, 1992 until the child reaches 18 on June 30, 1996. The child support order is part of the Circuit Court’s decree divorcing Mom and Dad. Support payments are in the amount of $200 per month and are due in one installment on the 15th day of each month. Dad never pays support, neither party never seeks a modification, and Mom never brings an action enforcing the support order, until now. If Mom files her action on June 1, 2014, then she can only seek the payments from June 15, 1994 through June 15, 1996. The payments that were due on January 1, 1992 through May 15, 1994 are lost to her because the statute of limitations has run on enforcing the judgments.

The statute of limitations on judgments is more forgiving than other statutes of limitations, however, because it can more easily be extended. Va. Code Ann. § 8.01-251(B) allows the 20 year limitation to be extended upon motion of the judgment creditor. When the judgment creditor makes the motion, the debtor has the burden of showing good cause for why the judgment should NOT be extended. This means that if Mom filed a motion to extend the judgment before January 15, 2012, Dad would have to show good cause why the judgment should not be extended, or else the judgment would be extended and Mom could then later collect for all of the back support.

Foreign Judgments & Continuing Enforcement

The Uniform Interstate Family Support Act set out in Va. Code Ann. §§ 20-88.32 through 20-88.82 states the Virginia rules for interstate enforcement of child support orders. Va. Code Ann. §20-88.40 allows a Virginia Court to request enforcement of its order in another state if (1) its support order is still the controlling order (i.e. it has not been modified by another state) or (2) an arrearage exists that predates the modification even if the support order has been modified. Additionally, Va. Code Ann. 20-88.66 allows Virginia to enforce another state’s support order. You cannot escape enforcement of a child support order by moving from another state to the Commonwealth of Virginia or by leaving the Commonwealth of Virginia for another state.

Conclusion

You can go to jail for failing to pay child support. Failure to pay child support may also have other serious consequences, including consequences that will hinder your ability to earn money, such as loss of a business license or driving license. Child support obligations need to be taken seriously. If support needs to be modified, you need to get an order modifying support. The statute of limitations on child support arrearages is generally at least 20 years. Even if you and the other parent are getting along now, and you feel it is safe to trust they will honor your verbal agreement, how confident do you feel that they will continue to do for the next 20+ years down the road?